The Housing Authority of the City of Milwaukee abandonment lease clause found by the Court of Appeals to be prohibited and voided its lease.

On July 7, 2026, in an unpublished decision of the Wisconsin Court of Appeals, the Court ruled that an abandonment clause of the kind used by the Housing Authority of the City of Milwaukee is prohibited under Section 704.44(2m), Wis. Stats.,  and ATCP 134.08, and that the lease used by HACM is therefore void and unenforceable. Merrill Park LLC c/o HACM v. Party Sealed by Judge Morales—42, 2024AP2465 (Wis. Ct. App. July 7, 2026)(unpublished decision).

Any abandonment clause which provides an owner with the ability to deem the premises abandoned and exclude the tenant without going through the required statutory judicial eviction procedures is a problem and a liability risk, and cannot not be included in compliant leases. 

According to the reasoning of the Court, an abandonment clause which simply “could” allow an eviction or exclusion of a tenant without the judicial eviction process is prohibited and will cause the lease containing it to be void. 

Under this reasoning, it is therefore not necessary that, for a lease to be void, that the lease must contain express language stating that the owner may exclude the tenant without using the judicial eviction process.

Under the Koble v. Marquardt decision of the Wisconsin Supreme Court, the Court of Appeals found that the HACM tenancy was a periodic tenancy (i.e. month-to-month), but the lease was held to be void, which means that the landlord cannot enforce it for this or other tenants on this same lease form.

The Court of Appeals held the following language to be prohibited and therefore the lease containing it to be void. Many older leases contained similar language. The law evolves constantly.  Be safe;  use a current, compliant lease.  

If RESIDENT abandons the Premises before expiration or termination of this Lease, its extension or renewal, or if the tenancy is terminated for RESIDENT breach of this Lease, MANAGEMENT AGENT shall make reasonable efforts to rent the Premises and apply any rent received, less costs of renting, to RESIDENT obligations under this Lease. RESIDENT shall remain liable for any deficiency.

If RESIDENT is absent from the Premises for two successive weeks without notifying MANAGEMENT AGENT in writing of this absence, MANAGEMENT AGENT may deem the Premises abandoned unless rent has been paid for the full period of the absence.

If RESIDENT personal property is left on the Premises after RESIDENT vacates or abandons the Premises, RESIDENT shall be deemed to have abandoned the property and MANAGEMENT AGENT shall deal with it as provided by the law, [WIS. STAT. §] 704.05(5)[.] 

WHAT DOES THIS MEAN?

If your lease contains a provision prohibited by Section 704.44, Wis. Stats., it is void.

When a lease is void, a property owner may no longer enforce it against any tenant under that lease form. A void lease converts to a month-to-month tenancy, which residents can terminate with 28 days’ notice. You also lose the ability to enforce pet provisions, parking restrictions, guest restrictions, nonsmoking clauses, and other provisions that are not included in Chapter 704.

If the improper lease results in monetary losses for a tenant, the tenant may still sue the property owners for double damages, attorney fees and costs. Depending on the facts of any individual case, these causes of action will likely be very costly; even if the court awards the tenant a couple of hundred dollars in damages, once it is doubled and attorney fees are added, the cost will be significant.

An abandonment clause could create monetary losses for the tenant. Disposing of tenant property when the tenant has not actually abandoned the unit will be costly, much more than a couple hundred dollars. 

Of greater concern are the potential penalties from the Department of Agriculture, Trade and Consumer Protection and the Wisconsin Department of Justice, up to and including imprisonment. 

These enforcement agencies have had, for four and a half decades, and continue to have, enforcement authority over property owners in landlord-tenant disputes. Some of the recent DOJ settlements and court decisions against owners have resulted in massive fines of $53,000, $75,000, $500,000, and $1.4 million, and, perhaps worst of all, 60 days in jail.

WHAT TO DO NEXT: Review your rental agreement for abandonment clauses. Understand that not all abandonment clauses “could” allow property owners to exclude tenants without using the statutory eviction process, and if they don’t do that, they may be compliant. For example, some abandonment clauses discuss the landlord’s duty to mitigate rather than allow the owner to deem the premises to be abandoned. If your lease looks like a problem, take steps to correct your lease so that it is compliant immediately.  If you are unsure, consult an attorney, or decide whether your lease works by simply removing the provision entirely.

Whether a tenant has abandoned a unit and the landlord can change the locks and take steps to re-rent the unit should be done on a case-by-case basis.  If you are unsure, consult an attorney, or file an eviction action and comply with statutory eviction procedures.  If you guess incorrectly and change the locks, the tenant will have been constructively evicted and you will be subject to liability and damages, and enforcement actions.     

Presented by Attorney Kirsten Fagerland Pezewski, the attorney retained by the Rental Property Association of WI, Inc.